29 December 2012

By my count, the number of Australians who died in 2010 by assault with a firearm was... 30. I assume that that did not include deaths in combat (I think there were four), but you might recall my recent blog post on deaths or wounding in the USA.

Terrorism in the USA: On 11 September 2001 a number of aircraft were flown by al-Qaeda hijackers into buildings in New York. About 3,000 people were killed in this atrocity.

Shootings in the USA: Each year nearly 100,000 people are wounded or killed by gunfire in America"

Motor vehicle accidents in the USA:In 2005 the number of people who died in motor vehicle accidents in the USA was 43,510. As of 2009 that was down to 34,000.

Now, we're not comparing fairly here, since the USA number including wounding, which the Australian figure does not. So, let's say that 80% were only woundings. That leaves 20,000 deaths by firearms in the USA.

Population of the USA: 311 million
Population of Australia: 20 million.

If my arithmetic serves me correctly, per 100,000 of population, that's 0.2 for Australia, and 6.4 for the USA - 32 times more for the US.

28 December 2012

One of the advantages of subscribing to a VPN service such as Witopia is that you can see things that are hidden from you. Here's an example:

On the Google Play Bookstore this book is USD$18.99 when my VPN makes me look like I'm in the USA, and and it's AUD$21.98 (USD$22.80 at the time of writing) when I'm "in" Sydney. Electronic download only, yet it's nearly AUD$4 more expensive to download in Australia. I'd like to hear the explanation for that!

20 December 2012

Logmein has released Cubby, a cloud and distributed file storage and sharing product.

I've been a beta tester of Cubby for quite some time, and for most of that time I saw no particular benefits over Dropbox. After a few days use of the production version I can summarise my thoughts quite quickly.

Cubby and Dropbox are extremely similar, but there are two key advantages to Cubby...

Cubby offers peer to peer synchronisation, much like Windows Live Mesh does/did (it's closing soon). That means that two separate PCs/Macs can synchronise the contents of folders without storing the files anywhere online. That can reduce costs and provide a bit more privacy.

Material in Cubby can, by default, be accessed by Cubby personnel (but they promise not to unless they have to). However, unlike Dropbox, you can turn on encryption on a folder-by-folder basis so that even Cubby can't get to your documents. You might infer that law enforcement authorities can't either, but there is a growing body of law in Australia and the USA that suggests that a court can order you to give up passwords.

Like Dropbox, Cubby has iOS, Android, OS X and Windows clients.

So, it's a bit better than Dropbox, but I won't be switching over to it for one huge reason - at the moment you can't edit documents on a mobile device and have the edits synchronise back to your other machines. When that is sorted and more mobile apps can interact with Cubby I will take another look.

17 December 2012

On 14 December 2012 a young man in Connecticut, USA, killed 26 people. He shot them with a legally purchased and owned AR-15, which is very similar to the M-16 used by armies all over the world.

I did a quick search on the internet and found a legal USA web site that sold not only many models of AR-15, but also 50 round drum magazines to suit them. This is obviously more than the 30 round magazines we used in the Australian Army in the 1980's.

In full automatic mode that 30 round magazine lasted probably less than 5 seconds. That's probably a good thing if someone is firing back at you at the same time. Those rounds probably also cost AUD$1 each, so it's an expensive activity. The AR-15 is sold in semi-automatic mode only, but it is easily converted to full automatic (I guess it's similar to the F1A1 SLR that could be converted to full auto with a matchstick).

On the other hand, if you're shooting a deer then the right thing to do is hit it in the heart and lungs and kill it with the first shot. Anything else is just cruel.

So that leads me to ask why any civilian needs a magazine that takes more than, say, three rounds. If you're on a rifle range you don't even want that - a single-shot bolt action will give more accurate results. A fifty round magazine only has one use...

But let's deal with some numbers.

Terrorism in the USA
On 11 September 2001 a number of aircraft were flown by al-Qaeda hijackers into buildings in New York. About 3,000 people were killed in this atrocity.

14 December 2012

(NB for those of you who think I may have a prejudice, I have never voted for the Australian Labor Party).

In December 2012 the Federal Court handed down a decision in Ashby v Commonwealth of Australia & Anor (No 4) [2012] FCA 1411 (12 December 2012). It was interesting because of the notorious reputation of the parties - the respondent (the person who was sued) was the Speaker of the House of Representatives and the applicant (the one doing the suing) was one of his staff members. Mr Ashby also sued the Commonwealth of Australia (the technically correct name of Australia), since the Speaker is an official of Australia and Mr Ashby was therefore actually employed by the Commonwealth.

The originating application was made pursuant to the Fair Work Act 2009, and was ultimately dismissed pursuant to r 26.01(1) of the Federal Court Rules 2011. That rule deals with abuse of process, and the Court ordered that Mr Ashby (the complainant) pay the costs of Mr Slipper (the former Speaker). This is an exceptional order in the Fair Work Act jurisdiction.

Mr Ashby started working for Mr Slipper on 22 December 2011. Mr Slipper had been Speaker for about a month and his party (the Queeensland Liberal National Party) had "dumped" him. He was therefore an independent.

On 20 April 2012 Mr Ashby sued Mr Slipper, making a number of allegations. Mr Slipper responded by applying to have the claim dismissed as an abuse of the process of the Court. This kind of application is very serious, because it means that the Court stops a court case in its tracks - the case is never heard. That sort of power needs to be used carefully, because even a weak case needs to have its day in court. However, an abusive case is a waste of the Court's time and the Court should be able to terminate it at an early stage.

The dramatis personae in this case were James Ashby (the applicant), Peter Slipper (the second respondent), the Commonwealth of Australia (the first respondent), Karen Doane (a staffer for Mr Slipper), the Hon Malcom Brough (a senator who wanted to move to the House of Representatives), Steve Lewis (a journalist at News Limted), Anthony McClellan (a media consultant), Peter Clyne (a barrister), and the solicitor for Mr Ashby Michael Harmer (well known in industrial relations legal circles and also for having a stoush with a former legal partner).

A proper analysis of this case would take quite some time, so we'll have a look at a few key points (with my emphases):

"5. Mr Slipper also argued that the proceeding should be characterised as an abuse of the process of the Court because it was commenced and prosecuted in a manner that was seriously and unfairly burdensome, prejudicial and damaging to him, or productive of serious and unjustified harassment. He argued that the proceedings were commenced and prosecuted in a manner that brought the administration of justice into disrepute, based on those vexatious and oppressive features together with the allegedly improper purpose of Mr Ashby and his confederates. He also contended that the process of the Court had been used as an instrument of a calculated and orchestrated political and public relations campaign with the object of harming him, aiding his political opponents and advancing the interests of Mr Ashby and Ms Doane."

Mr Ashby had, amongst other things, made allegations known as the 2003 and Cabcharge allegations, which were later abandoned in the Statement of Claim, which was filed on 15 May 2012. Mr Slipper noted that no evidence of these allegations was filed, and the Court found that Mr Harmer had breached his professional obligation "not to misuse his privilege to make allegations under absolute privilege in Court documents." (para 190).

The Court came down pretty hard at this point:

"Mr Harmer knew that Mr Ashby had the right, if not the duty, to go to the police with any concerns he genuinely had about Mr Slipper’s use of Cabcharge vouchers. But, the pleading of Mr Ashby’s intention to do so had no legitimate forensic purpose. His inclusion of irrelevant assertion of Mr Ashby’s intention to go to the police in the originating application was an abuse of the process of the Court for the same reasons as was the submission of the barrister, Peter Clyne in open court that a solicitor, Mr Mann, had been guilty of professional misconduct."

"191. Here, it is difficult to avoid the conclusion, that I draw, namely that the inclusion in the originating application of the assertion that Mr Ashby intended to report the Cabcharge allegations to the police, offered him and Mr Harmer the opportunity to make a more serious public attack on Mr Slipper than would have been the case merely by making the balance of the Cabcharge allegations. That attack, in the form it was made, was a misuse of Mr Harmer’s privilege as a lawyer. The use of the Court’s process to make that attack in that form was an abuse of process."

I can't put it any better than the Federal Court:

"For the reasons above, I am satisfied that these proceedings are an abuse of the process of the Court. The originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper. It contained the scandalous and irrelevant 2003 allegations and assertion that Mr Ashby intended to report to the police Cabcharge allegations. To allow these proceedings to remain in the Court would bring the administration of justice into disrepute among right-thinking people and would be manifestly unfair to Mr Slipper:.. Even though Mr Ashby has now abandoned the 2003 and all the Cabcharge allegations, the features that I have criticised did the harm to Mr Slipper that Mr Ashby and Mr Harmer intended when those allegations were included in the originating application. A party cannot be allowed to misuse the Court’s process by including scandalous, irrelevant or damaging allegations knowing that they would receive very significant media coverage and then seek to regularise his, her or its pleading by subsequently abandoning those claims."

A lot of comments could be made about these portions of the judgement, but a lesson from this case is that one should only plead allegations that are intended to be made, intended to be pursued at trial, and are supported by evidence.

13 December 2012

Google maps is available in the App Store again. In Sydney (where I've tested it) it has turn by turn directions, the original level of detail of Google maps, and the GUI has been designed for easy use in a car cradle. I'd say it's better than the version on my Nexus 4!

12 December 2012

I don't normally like talking about mobile phone plans because they are poorly marketed in Australia.

I personally use TPG - their $18/month plan works well for me, and I also have 2 of their $1/month SIMs for my iPads. I rarely pay more than $1/month, and when I do I'm ok about it. The plan is run over Optus's 3G network.

Kogan has just released a package based on Telstra's 3G 850 MHz network. It seems to be quite specific to that frequency, so if you're interested make sure your phone works with that frequency.

For $299/year you get unlimited Australian calls, sms, mms and 6GB of data per month. Not bad.

09 December 2012

You may have heard that recently two presenters on 2DAY FM telephoned a hospital in England and asked for personal medical information about one of its patients, while on-air.

The phone was answered by a staff member who transferred the call to the ward where the personal information was given out. The nurse who answered the phone, Jacintha Saldanha, subsequently committed suicide.

Prior to the not entirely unpredictable terrible outcome, the radio station and staff thought it was funny and a harmless prank. There was no malice, and there was no intent to injure, but this is a classic case where "prank calls" have not been thought through, regardless of the outcome.

Let's break down what occurred:

Trivialising the nature of the illness

The patient was a member of the British royal family. Apparently the radio station thought it was harmless because the Duchess of Cambridge's illness was morning sickness. This trivialises the fact that she needed to be hospitalised - no-one wants to be in hospital or have someone in their hospital who is not sick. Was the illness "funny" because it was a woman's illness? Would the radio station have called Prince Charles if he had prostate cancer? Why is an illness that was sufficient to hospitalise an adult woman considered funny?

Breach of the Privacy Act 1988

In Australia the activities of the presenters would have placed the hospital and its staff members in clear breach of the Privacy Act 1988. The Act deals with "health information" specifically, and does not differentiate between HIVAIDS and a broken toe.

Health information, as defined by the Privacy Act, is "sensitive information", a category that includes criminal history, sexual preference, genetic information, and racial or ethnic origin. It is particularly protected.

Work Health and Safety Laws

Notwithstanding the nurse's death, there are Work Health and Safety laws at issue here - the woman could have been injured as a result through depression, being ostracised, damage to her career prospects (this may well have affected her hiring prospects in the future), the derision of colleagues or acquaintances or more. She didn't get paid to suffer these things.

Confidential information

The common law in both Australia and the United Kingdom protects the disclosure of information that is imparted in a confidential context. Again, 2DAY has opened innocent staff up to an action for breach.

Penalties for the conduct

Disclosure of information in breach of the Act renders the discloser - in this case the nurse and her employer would have been if they were in Australia or the patient was an Australian citizen - liable for a penalty of up to 1 year imprisonment or 60 penalty units (a substantial fine). No-one goes to work expecting some person who, for the sake of advertising, dupes them by false pretences (they falsely pretended to be persons they were not) into disclosing "sensitive information". Was that actually funny? Would you like someone to do that to you at work? Your job and your livelihood are potentially put in jeopardy by someone trying to make money by selling advertising.

Message to 2DAY

2DAY makes money by selling advertising. To maximise the income, it needs to maintain or increase the number of listeners. To maximise the number of listeners it has created a situation where innocent health workers have been put in potential or actual breach of laws, creating sadness and hurt in the workplace (without even taking into account the tragic death). Perhaps prior to the next prank call 2DAY's staff should consider the sad moments in their own working lives and how others have created or contributed to those moments.

About Me

Well known for my column Cyberspace in the Journal of the Law Society of New South Wales, I'm in private practice in a specialist technology & commercial law firm - Pym's Technology Lawyers. I've been in-house legal counsel at major enterprises:

Ash Street Partners

Pym's Technology Lawyers

Sydney Water Corporation (Australia's largest water utility), and

Technology & Commercial law team at the Australian Broadcasting Corporation (Australia's pre-eminent media organisation),